A federal district court in California has added to the small body of case law addressing whether it’s permissible for one party to use another party’s trademark as a hashtag. The court held that, for several reasons, the 9th Circuit’s nominative fair use analysis did not cover one company’s use of another company’s trademarks
In U.S. copyright law circles, one of the hottest topics of debate is the degree to which the fair use doctrine—which allows for certain unauthorized uses of copyrighted works—should protect companies building commercial products and services based on content created by others, especially where such products or services are making transformative uses of such content.
This debate is likely to become even more heated in the wake of the Second Circuit Court of Appeals’ issuance last week of its long-awaited decision in the copyright dispute between Fox News and TVEyes, in which the court sided with the copyright owner over the creator of a digital “search engine” for identifying and viewing television content. But regardless of which side of the debate you are on (or if you are just standing on the sidelines), the court’s decision provides important guidance on the scope of the fair use doctrine as applied to commercial products and services.
Using the closed-captioning data that accompanies most television programming, TVEyes provides a searchable database of video clips. TVEyes’ subscribers—who pay $500 a month—can search the database for keywords in order to identify and view video clips from the service; such video clips may be as long as ten minutes in duration.
In July 2013, Fox sued TVEyes for copyright infringement and, in August 2015, Judge Hellerstein of the U.S. District Court for the Southern District of New York held that the key features of the TVEyes service are protected under the fair use doctrine.…